The Journal editorial echoes Desmond’s advocating for legal representation for tenants in most evictions. If you frequent eviction court you seldom see a day without Legal Action representing tenants. ATCP 134 provides enticement for attorneys to represent tenants tenants tin cases where the owner is doing wrong.

Implying tenants need legal representation simply perpetuates a myth that wrongful evictions are common and owners somehow benefits from an eviction. In fact by the time it is over the owner has lost two to three months rent and often more. Legal representation for tenants in evictions seldom does more than simply let the tenant get another month of nonpayment before leaving.

In an average month eviction judgments in Milwaukee County exceed $847,000 – every month. But this is but a fraction of the losses suffered by property owners. Of those evictions, only a third of the cases had money judgments other than the court applied fees. Was this because the tenant did not owe rent? No, more likely because the owner did not want to waste more time chasing a judgment they will never collect. Those in our industry as well as those outside of the rental business will tell you that less than a quarter of uncollected rent ends up in eviction court.

This is money removed from housing and increases costs for the rest of the tenant population. While some tenants may use the money for real needs like shoes for kids, some use it for other things that further harm the community.

Then there is the comments about constructive (illegal) evictions. While statements like this flame the fires of hatred against landlords, such acts seldom occur and when they do there is adequate remedies for the tenant. I own two duplexes that a guy walked away from his 1/3 down and eight years of payments after he spent a weekend in jail because he threw the tenants’ belongings out on the front yard and changed the locks. Seems the tenant did not pay rent and when he went to find out why, he also found they broke the front picture window. His first stop after getting out of jail was my office to see if I would buy them for the remaining mortgage. Small owners take these things too personally…

Desmond’s book has brought the issue to the forefront. And this is good. Its is our industry’s job to make sure this does not turn from what it is, the bringing a real problem to light, into yet another excuse to bash the rental housing industry.

The part of the discussion that would be helpful to the overall community is increased housing vouchers. Universal food stamps for people in need was a good first step many years ago. Housing and utilities vouchers for those who need them the most would be a good next step.

In the past week I have had three owners ask about pools. First, let me say this is much better than the questions about ice dams that we get most of the year. 😉

If your lease is silent on pools, you may use the Wisconsin state law that requires your tenant to comply with local housing codes.

§707.07(3) (c) A tenant in a residential tenancy shall comply with a local housing code applicable to the premises.

Milwaukee Ordinance define the requirement for pools, starting at 75-20-5

“PERMIT REQUIRED. In addition to the requirements of ch. SPS 390, Wis. Adm. Code, no person shall construct, install, enlarge, establish, maintain or make any alteration to any public swimming place or any outdoor private swimming place without a pool construction permit issued by the commissioner.”

If your tenant is a month to month you must give them a 14 day termination. I suggest if they were otherwise good tenant that you include language such as “We will vacate this notice only if you remove the pool within 48 hours conditioned on not reinstalling a pool in the future without first obtaining all permits and complying with all City regulations”. Attached a copy of the Milwaukee pool regulations.

If you use a year lease you must give them a 5 day breach notice, allowing them 5 days to remove the pool or be evicted.

Why are owners against pools, don’t they want the tenants to enjoy summer? Pools are dangerous even when installed with proper fencing etc.

Late yesterday the Wisconsin Senate approved an Assembly amendment to SB 179. This law, which should be in effect around the first of 2014, makes sweeping changes to Wisconsin Landlord Tenant Law. The bill was a combined effort of the Apartment Association of Southwestern WI, The Wisconsin Realtors and the Wisconsin Apartment Association.

Highlights of the bill taken from the Leg Council Memo are, and this is my analysis of what is important and not a legal opinion by an attorney because as you know I am Just A Landlord:

Restrictions on Local Ordinances [Sections 1 to 4]

Municipalities are currently prohibited from enacting or enforcing ordinances that:

Imposing a moratorium on eviction actions

Places certain limitations on what information a landlord may obtain and use for screening.

New law adds prohibitions against ordinances that:

Limits a tenant’s responsibility, or a landlord’s right to recover, for any damage or waste to, or neglect of, the premises that occurs during the tenant’s occupancy of the premises.

Limits a tenant’s responsibility or a landlord’s right to recover for any other costs, expenses, fees, payments, or damages for which the tenant is responsible under the rental agreement or applicable law.

Requires a landlord to communicate to the municipality any information concerning the landlord or tenants unless the information is required under federal or state law or is required of all residential real property owners.

Leases [Section 18]

Under current law, if a lease is void and unenforceable if it contains a provision that allows the landlord to terminate the tenancy of a tenant if a crime is committed in or on the rental property, even if the tenant could not reasonably have prevented the crime. [s. 704.44 (9), Stats.]

The new law allows for Crime Free Lease Addendums as long as you include a specified notice, in the lease agreement or an addendum to the lease agreement, of certain domestic abuse protections available under ss. 106.50 (5m) (dm) and 704.16, Stats. The first of these sections prohibits a landlord from evicting a tenant because of the tenant’s status as a victim of domestic abuse, sexual assault, or stalking. The second of these sections provides that a residential tenant may terminate his or her tenancy if the tenant or a child of the tenant faces an imminent threat of serious physical harm from another person if the tenant remains on the premise

Timing of return of Security Deposit with regard to evictions [Sections 15 and 16]

Under current law, if a tenant is evicted, a landlord must return the security deposit to the tenant, less any amounts that are appropriately withheld, within 21 days after the date on which the writ of restitution is executed or the date on which the landlord learns that the tenant has vacated the premises, whichever occurs first. [s. 704.28 (4) (d), Stats.]

Under Senate Bill 179, If the tenant is evicted before that date, the landlord must return the security deposit within 21 days after the lease terminates or, if the landlord re-rents the premises before that day, the date on which the new tenant’s tenancy begins. If the tenant is evicted after the termination date, the landlord must return the security deposit within 21 days after the date on which the landlord learns that the tenant has vacated the premises or the date the tenant is removed by eviction.

Service of Summons in Eviction Action [Section 22]

Allows courts to permit service of eviction summons by Certified Mail. This will be on a county by county basis.

Allows LLC to appear by member or agent, rather than requiring attorneys [Section 21]

Under current law, in any small claims action, a property owned by an LLC must use an attorney or full time employee of the LLC

Senate Bill 179 eliminates the requirement that the employee be a full-time employee and also allows any small claims action by a member of the person, an agent of the member or an authorized employee of the agent. This provision applies to all small claims actions, not only evictions.

Disposition of Property Left on Rental Premises After Eviction [Sections 9, 10 and 29 to 46]

Under current law, in Milwaukee County, the sheriff must remove and store the tenants’ property. In all other counties, the landlord may choose to be responsible for the removal and storage of the property.

Under Senate Bill 179, if a tenant is evicted and leaves property on the rental premises, the landlord is not required to store the property unless the landlord and tenant have entered into a written agreement which provides otherwise. If the landlord does not intend to store personal property left behind by a tenant, the landlord must provide written notice either when the tenant enters into or renews the rental agreement.If this notice is provided, the landlord may dispose of the property, other than prescription medicine or medical equipment, in any manner that the landlord determines is appropriate.

Towing of Vehicles [Sections 5 to 8]

Under current law, a vehicle that is parked on a private parking lot or facility without the permission of the property owner may not be removed without the permission of the vehicle owner, unless a traffic or police officer issues a citation for illegal parking, or a repossession judgment is issued.

Under Senate Bill 179, a vehicle that is parked without authorization on private property that is properly posted may be towed immediately regardless of whether a parking citation is issued.

This final one is the most complex of the changes and requires some Administrative rules to be created.

There is also a change regarding Mobile Home Parks, but I am not impacted and therefore did not review them.

Our world is full of traps for rental owners… Fail to document the deposit return letter when was sent and a $300 deposit turns into $5,000 with attorney fees. Try to be helpful and not rent the third floor walk up to a person with a bad leg and pay $10,000 in a Fair Housing claim. Likewise tell the person with the companion dog that there is no way you are renting to a person with a Pit Bull and pay another ten grand. Give the tenant with a year lease a 14 day for disturbing the neighbors and breaking your windows or the tenant with a month to month a 5 day for the same reason and you will have to start your court case all over again. The list of pitfalls is endless and growing.

So how do you collect your rent, fill your vacancies and evict tenants without getting in trouble or having expensive do-overs?

You could throw your arms in the air and give up, but that probably is not the most effective approach. You can go through life figuring these are things that only happen to the other guy or to”bad” landlords. That works for a while until you become the other guy. You could hire an attorney to be along side you for every decision, but that probably is not financially effective.

The only viable answer is to know the laws that affect us well enough to either know the answer or know when you need help. You can venture out and learn as you go through your own mistakes, usually a very expensive education – there is a reason they call it the school of hard knocks, or you can get as much education as practical before you find yourself on the losing end of a legal battle.

I started with the learn as you go method. It cost me three grand in 1982 dollars when a tenant that snuck out in the middle of the night sued for their deposit. I lost because I did not know the law well enough to make the proper argument that the 21 days did not start on the day they skipped out, but rather on the day I found they moved. So my letter sent seven days after I found a vacant apartment was proper, but laws only work for those that know them.

My next education was a Bob Smith Landlord Tenant Law course at Marquette. Much more informative and less expensive. A couple of years later Bob condensed this into a full day landlord tenant law for the Association. It cost somewhere around two hundred dollars and included his book “Landlord Defense: Eviction and Collection manual” that had most of the forms needed. For those who want to stroll down memory lane, here is a Sentinel article with a really young picture of Bob:

The Association continues to offer the best landlord tenant law course out there. The Landlord Boot Camp gives you the fundamentals in a full day Saturday class. It is updated to include the latest law changes and includes a 100 page plus manual. It is presented by Attorney Tristan Pettit who writes the standard landlord tenant forms for Wisconsin Legal Blank. Tristan also worked on SB179 that may become law later this month. If it does pass he will have an insiders view on how this law can be best utilized by owners.

The next Boot Camp is Saturday October 26th 8:30 AM to 5;30 PM. Costs is $159 for AASEW members and $249 for non-members.

I have couple questions regarding to eviction. I have given notice, which due yesterday. If the rent arrives shortly after the court paper file, Can I take the payment but still be able to go head with the eviction because I really don’t want to continue with this tenant?

My notice is for August’s rent. When I file the court paper, Am I be able to sue for August’s and September’s together?

Easy part: At the second and third cause hearing you will be able to claim the September rent, October rent if the case drags out that long and damages and should get a judgment assuming personal service or publication of the summons. Whether you will actually collect those amounts is often a different matter.

More difficult part: The Statute changed in March 2012 to state that acceptance of rent after the expiration of a notice terminating tenancy for nonpayment does not void the eviction action. I feel the statute can be read in a manner that it may only apply if you commence the action prior to taking the money. But remember I am not an attorney, just a landlord.

Also in practice it appears that Milwaukee County Courts tend to still view acceptance of rent as an agreement to cancel the eviction.

799.40 Eviction actions.…(1m) Acceptance of rent. If a landlord commences an action under this section against a tenant whose tenancy has been terminated for failure to pay rent, the action under this section may not be dismissed solely because the landlord accepts past due rent from the tenant after the termination of the tenant’s tenancy.

Disclaimer

I am "just a landlord," NOT an attorney or accountant. If you need legal advice, tax advice or have appendicitis, don’t rely on something you read on the internet and do it yourself. Rather, hire a competent professional.